Sweating the Small Stuff: Copyright in a Yodel, a Tweet, and the News

Small is sometimes beautiful; and sometimes, too, it’s valuable—if you hold the copyright. Three illustrations of this “small meets copyright” story have cropped up recently with somewhat different twists to the tales.

Up first is the yodel—you know, that voice-break corruption of singing common to cowboys and Alps dwellers. It seems (see the article in the Guardian) that one of the favourite beer hall songs in Germany and Austria, Das Kufsteinlied, which sings (mostly) of the beauty of the village of Kufstein in the Tirol, contains a chorus of the absolute favourite yodel in Germany and Austria. The song was written in 1946 by Austrian, Karl Ganzer. The publisher, Egon Frauenberger, claimed that though Ganzer composed the song, he, Frauenberger had written the refrain, which is to say the yodel, worth, it would seem, 1/12 of the royalties. The court in Munich did not agree.

If, by any chance, you would care to risk your equanimity, you can listen to Das Kufsteinlied on YouTube: with yodel / without yodel.

A tweet is like a yodel, perhaps, only smaller—but equally able to kick up a fuss about copyright, this time more in the abstract. The larger-than-life Mark Cuban, the dot-com billionaire and owner of the Dallas Mavericks basketball team, commented on Twitter recently about what he thought was some bad refereeing. (His Twitter account is http://twitter.com/mcuban. You can see the tweets in question here.) The NBA took umbrage and fined Mr. Cuban $25,000. As a consequence of this fuss, ESPN republished Cuban’s Twitter feed without obtaining his permission, giving rise in the blogosphere and the twitterverse to much speculation about whether in so doing ESPN had infringed on his copyright, and, more baldly, whether there is copyright in a tweet anyhow.

In a way, that’s a peculiar question: tweets are literary productions and like all such writings capable of attracting copyright. No big deal. Well, perhaps no small deal, or, as the last line of the legal limerick says, “De mimimis non curat lex.” At 140 characters in length, tweets might be too short to rise to the level of originality necessary for a literary production to be copyrightable. Clearly, for example, you can’t copyright a single word—you aren’t the first to use it. Same probably goes for two-word combinations. Titles of books are not copyrightable in most systems. And so it goes up to… how many words? Length is not the only stumbling block to tweetright: you can’t copyright facts and many tweets are simple statements of facts; originality requires creativity and most tweets are minimally creative at best; etc. All of which leads, according to “Twitterlogical: The Misunderstandings of Ownership” by U.S. IP lawyer, Brock Shinen, to the conclusion that some rare tweets might be protected by copyright but most tweets would not be.

Hardly news, to most of us law types, I guess. And speaking of news, be careful when speaking of news: AP’s on the prowl. The Associated Press is tired of having its articles copied online and has drawn a line in the ether. They want to be paid no simply for any use of their articles entire, but, according to the story in the New York Times, for the mere use of the headline and a link to the article; and they intend to “wrap” each of their stories with a digital cover that would, among other things, send an alert back to AP HQ that one of their stories is being used. This, as you can imagine, might cause some difficulty for certain news indexing sites, leading to more arguments about how small a snippet is copyrightable, when is AP simply trying to copyright facts, and whether and what takings might be exculpated as “fair dealing” or, as it’s called in the US, “fair use.” (It seems that Google and Yahoo pay AP, so it’s not the real biggies they’re going after.)

Bloggers are up in arms about this, mostly hammering the wrong-headedness of the stance in this digital age. Do small takers need to worry? Not according to Ryan Chittum of the Columbia Journalism Review, who blogs that he phoned AP and heard from Jane Seagrave, senior vice president of global product development, that AP

. . . has no intent to nail individual bloggers for linking to stories or quoting headlines. It’s going after wholesale theft of its content by websites trying to make a profit off of it.

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Comments

  1. You are assuming that yodelling is a human activity. However the caselaw seems to suggest that animals may yodel as well:

    the breed in question show it to be a type of dog not suited to strata living for example it is strong willed, difficult to control and is wont to yodel.

    And the Yodel Song can be traced back to the Thirties:

    Alas! the Yodel Song was interrupted by an ominous clicking, accompanied by a spitting in the carburettors.

    See Gott, 5 Metropolitan Police C. J. 67 (1939)

    As for copyright in music sung in bars by drunken Swiss, is anyone nostalgic for the Pete Seeger approach:

    “This song is Copyrighted in the U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

  2. It was Woody Guthrie, not Pete Seeger who wrote that.

    I don’t mean to be sweat the small stuff, but as I recall that copyright notice got pretty wide circulation when JibJab used This Land is Your Land for a joke video during the 2004 presidential campaign and heard from the song’s owners.